Is Forcing IsoHunt To Block Search Terms A First Amendment Violation?

from the legal-questions... dept

Given similar rulings, and the judge’s comments so far in the IsoHunt case, I find it quite unlikely that the company has any chance of getting out from under the injunction issued against it. However, IsoHunt’s lawyer, Ira Rothken (who has been involved in a few similar lawsuits), is trying to make the case that the current injunction is way too broad and a violation of the First Amendment. The argument is that the injunction bars certain searches, telling Isohunt operator Gary Fung that he cannot allow searches for certain movie titles, such as Alice in Wonderland. But, Rothken points out, the movie studios don’t own that name. They may own a particular movie under that name, but using that to block all searches on the name goes beyond what the law allows:

One issue concerns how Fung should remove searches from his three search engines: Isohunt, Torrentbox and Podtropolis. The Motion Picture Association of America, which brought the case, has sent keyword searches it wants removed, like the number 10, Alice in Wonderland and Dracula, Rothken said.

“One person’s copyrighted Wizard of Oz is another person’s public domain work,” Rothken said in a brief telephone interview Tuesday. He said the movie studios should provide URLs or hashes, which would positively identify which search link should be removed.

“The motion picture studios do not have a monopoly on names on things. That is where the injunction is violating the First Amendment,” he said.

I’m sure that copyright system defenders will brush this off as being a pointless exercise, but he’s actually got a very reasonable point. Asking for blocks on names alone seems to go well beyond what the law is supposed to allow. It’s yet another example of the difference between real copyright law and file sharing copyright law. Copyright law does not allow for a block based on just a name. But, apparently “file sharing copyright law” does. And that’s a problem, if you actually believe in the rule of law and interpreting the law accurately.

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Companies: isohunt

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Comments on “Is Forcing IsoHunt To Block Search Terms A First Amendment Violation?”

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Big Al says:

Just a thought here...

Alice in Wonderland and Dracula (the books) are both in the public domain and hence available on Project Gutenberg. Any ban on either of those titles will also stop the perfectly legal CD download of the illustrated e-books if they happen to be there.
Now, what was that about promoting the progress…?

Anonymous Coward says:

Re: Re: Just a thought here...

If I’m trying to distribute it via ISOHunt, and it’s blocked, what’s my recourse?

Simple! You aren’t supposed to distribute stuff on your own, you’re supposed to go through “the system” (e.g RIAA, MPAA, etc). So, stick with “the system” like you’re supposed to and you won’t have that problem!

PaulT (profile) says:

Re: Just a thought here...

Indeed, that’s what’s so problematic.

Take Dracula, for example. Bram Stoker’s original novel is in the public domain, as is his short story follow-up Dracula’s Guest. There are many legitimate CC-licensed audiobook readings available quite legally as well as old radio shows (including one I just found on about Sherlock Holmes vs. Dracula!).

The more famous film adaptations are copyrighted (Universal, Hammer, Coppola), but there are other versions that are not. there are numerous movies which have nothing to do with the original property, but are known under a cash-in title that mentions it (such as Al Adamson’s infamous Dracula vs. Frankenstein). There are copyrighted stage play versions, but also uncopyrighted versions have been filmed and are available online. Yet, in order to “protect” the copyrighted works, free and legal distribution of other works (which may not be commercially viable enough to get a DVD/CD/whatever release) could disappear from the public view.

As ever, this is nothing to do with “protecting” art. It’s to do with protecting a subset of copyright owners who can’t be bothered to adapt to the modern world, and don’t care how much other art gets lost in the process.

Anonymous Coward says:

Re: Re: ISOhunt

The case is being tried in the United States, under US law. The first amendment applies in every aspect.

Oh really? How’s that? The case is being tried by the 9th US Circuit Court of Appeals in San Francisco, which is located on the western seaboard (i.e. within 100 miles of the US border). As we know, the US Supreme court has ruled that Constitutional rights don’t necessarily apply within 100 miles of the border.

fogbugzd (profile) says:

Could easily be used to block protected speech

Suppose I am a politician named Joe Smith, and my opponents have accused me of being soft on crime. All I have to do is write an article or make a short video named “Joe Smith is Soft on Crime.” (The work could be exactly opposite of the title since the modern political trend is to name things the opposite of what they stand for.) Then claim copyright, and get search engines to block on all searches related to Joe Smith being soft on crime. Even better, get a judge to order all searches on the topic to point to my document.

Anonymous Coward says:

Re: My question

I’m puzzled why so many judges are coming up against filesharing. Has our legal system become so… ancient that none of the judges understand the Sony vs Betamax decision or are they actually learning about copyright law from the RIAA directly?

No, they’re just corrupt. Judges are part of the system and most love their power and their control over others. Now file sharing (and the Internet in general) redistributes power and control away from the old system. Thus, they see it as a threat and something that should be stamped out. So they make rulings to try to do that.

telnetdoogie (profile) says:

There's an opportunity here...

There’s an opportunity here to turn the tables on the MPAA. Google, IMDB, Yahoo, and as many other search engines as possible, in support of an open internet, should also block any searches for any of the terms laid out in this case. You know, just ‘in case’ someone’s looking to download something illegally.

Then the movie producers would be SO happy with the MPAA when no-one’s visiting their site any more 🙂

Anonymous Coward says:

How the Law is Made

It’s yet another example of the difference between real copyright law and file sharing copyright law.

The law means whatever the judge says it means (at least unless and until a higher ranking judge says otherwise). Thus, this *is* real law, known as “case law”.

Copyright law does not allow for a block based on just a name.

Sure it does, because the judge said so.

And that’s a problem, if you actually believe in the rule of law and interpreting the law accurately.

Unless and until a higher ranking judge says otherwise, this *is* “interpreting the law accurately”. That’s the US legal system for you, delivering the very best justice money can buy. Isn’t that the way capitalism is supposed to work?

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